#17000 - Morality In Law Laws 110 8 March - Legal Foundations (LAWS110)

Laws 110

8 March

Moral concepts of law

Procedural Morality (Fuller)

• Impartiality

• Non-retrospectively

• Legitimacy

• Lottery (equal chance)

Substantive Morality (fairness of the outcome). Must apply for rules to be called laws, they are illegitimate if it does not have substantive morality

• Fundamental principles

• Slavery, torture, genocide

• Human rights

Contested concept

There is an inherent concept of fairness, goes against the positivist idea (choice of man),

Judges rationalise their own view, they play with statutes to achieve their end

Natural law comes from logic, logically certain p or s have to be a part of the law for it to be consistent.

Fuller says fairness comes from legitimacy

Focuses on procedure, laws need to be consistent. Procedural mechanisms. Not impartial. Procedural morality. It has to have certain procedural elements to make it law.

Court said she had a choice, she was following illegitimate laws that breached human rights. (Fuller and Hart both agreed- strong natural law view, applied in Nuremberg Tribunals law)

See it now with views on torture, these concepts were all wrong

Modern movement towards human rights, no law can legitimise some crimes.

Rule of Law- society bound by the law

Formal Rule of Law- just procedure

Morality and the Rule of Law

Formal Rule of Law

• Fair procedures

• No Actions outside the law

• No Substantive Protection

Substantive Rules of Law

• Human rights

• Constitutional protections

• Some rights are fundamental

Natural law vs Positive law

Cant get damages under Bill of Rights

Parliament removed this from this bill

Breach of Rights- another remedy

Now have damages- Simpson case. Judges stuck it in act, natural law, when something is wrong you changed it

Some laws are so heinous

Formalism and Functionalism – judges make an interpretation, do you apply tikanga? (functionalist yes)

Law is

• Morally legitimate Rules/Customs that perform particular functions in society requirements (Natural Functionalism)

Morally legitimate rules which conform to particular formal requirements (natural formal)

Natural law- High moral code is a part of the law

Positivism- separate from morality

Hart and Illywyn are both positivists

Formalists- Rule of recognition at the top, primary and...